JOHNNY RAY BINGHAM v. STATE OF MISSISSIPPI

JUNE 01, 1983

JOHNNY RAY BINGHAM v. STATE OF MISSISSIPPI

BEFORE BROOM, HAWKINS AND DAN LEE

DAN LEE, JUSTICE FOR THE COURT:

This is an appeal from the Circuit Court of Madison County wherein Johnny Ray Bingham, defendant/appellant, was indicted and tried for the September 13, 1980, murder of Ozell Carter. The jury found Bingham guilty of manslaughter, whereupon he was sentenced to serve a term of 15 years in the custody of the Mississippi Department of Corrections. Bingham now appeals his conviction and sentence to this Court and assigns the following errors for reversal:

PROPOSITION ONE

The trial court erred in granting the oral motion of the district attorney, after the jury had been empaneled, to amend the indictment rendered by the grand jury against the defendant, Johnny Ray Bingham, to reflect the name of the person killed to be Ozell Carter rather than Mozell Carter as shown on the face of the indictment.

PROPOSITION TWO

The trial court erred in failing to sustain the objection by the defendant to the statement made by the district attorney to the jury during voir dire examination that if the court instructed

the jury that the state of Mississippi would be required to prove that the defendant was guilty beyond a reasonable doubt, the jury should not interpret that to mean that they must find the defendant guilty beyond a shadow of a doubt.

PROPOSITION THREE

The trial court erred in failing to sustain the motion for a mistrial of the defendant to the statement made by the district attorney to the jury during voir dire examination that if the court instructed the jury that the state of Mississippi would be required to prove that the defendant was guilty beyond a reasonable doubt, the jury should not interpret that to mean that they must find the defendant guilty beyond a shadow of a doubt.

PROPOSITION FOUR

The trial court erred in failing to sustain the objection of the defendant to the testimony of Sheriff W. B. Noble during the state's rebuttal as to what Roy Lee Lawson told him on the night of September 13 and 14, 1980.

PROPOSITION FIVE

The trial court erred in failing to grant the motion for mistrial of the defendant concerning the testimony of Sheriff W. B. Noble, during the state's rebuttal, as to what Roy Lee Lawson told him on the night of September 13 and 14, 1980.

PROPOSITION SIX

The trial court erred in failing to grant the defendant's motion for new trial since the verdict of the jury was against the overwhelming weight of the evidence.

During the evening hours of September 13, 1980, several people attended a party at the home of Emma Caldwell. Among those present were the appellant and Ozell Carter, deceased.

Sometime during the evening Ozell Carter attempted to sit down next to Emma Caldwell who resisted his advances. Carter then grabbed Miss Caldwell by the arm; however, she jerked away and walked to the front porch of the residence. When appellant, Emma's boyfriend, inquired as to what was wrong, she explained that Carter kept" messing "with her. Appellant responded that he would talk to Carter.

When appellant confronted Carter with the matter, an argument erupted. According to witnesses for the state, appellant shot Carter while Carter was pouring beer into a cup. Appellant and his witnesses testified, however, that Carter set his cup down and then reached into his pocket before appellant shot him. Appellant and his witnesses, who knew that Carter had a reputation for carrying a weapon, believed Carter was reaching for a weapon at the time appellant fired the fatal shot. It was subsequently learned, however, that Carter was unarmed. Witnesses for the state denied that Carter made any move resembling an effort to produce a weapon.

Carter died from a single .38-caliber wound to the right temple.

The jury returned a verdict of guilty of manslaughter, whereupon appellant was sentenced to serve a term of 15 years in the custody of the Mississippi Department of Corrections.

I. Did the trial court err in granting the state's ore tenus motion to amend the indictment after the jury had been empaneled to change the name of the victim from Mozell Carter to Ozell Carter?

The indictment in the case at bar charged as follows:

THE STATE OF MISSISSIPPI COUNTY OF MADISON

IN THE CIRCUIT COURT OF SAID COUNTY, MARCH TERM, 1981.

The Grand Jurors of the State of Mississippi, taken from the body of good and lawful citizens of said county, elected, summoned, empaneled, sworn and charged to inquire in and for the body of the county aforesaid, at the term aforesaid of the Court aforesaid, in the name and by the authority of the State of Mississippi, upon their oath present that JOHNNY RAY BINGHAM late of the county aforesaid, on or about the

14th day of September, 1980, in the county aforesaid and within the jurisdiction of this Court, did wilfully, unlawfully and feloniously, and of his malice aforethought, kill and murder one Mozell Carter, a human being.

After the jury was empaneled on the day set for trial (September 14, 1981), the state moved ore tenus to amend the indictment by changing the victim's name from Mozell Carter to Ozell Carter. A hearing was held, whereupon the trial court found that the grand jury intended to indict appellant for the murder of Ozell Carter. Therefore, the amendment was allowed. The trial judge, however, declared a mistrial and reset the case for the following Thursday (September 23, 1981), to allow appellant additional time he might need to make certain ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.